{"id":94104,"date":"2003-11-28T00:00:00","date_gmt":"2003-11-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/secunderabad-cantonment-vs-mohammed-mohiuddin-and-ors-on-28-november-2003"},"modified":"2015-05-31T00:52:26","modified_gmt":"2015-05-30T19:22:26","slug":"secunderabad-cantonment-vs-mohammed-mohiuddin-and-ors-on-28-november-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/secunderabad-cantonment-vs-mohammed-mohiuddin-and-ors-on-28-november-2003","title":{"rendered":"Secunderabad Cantonment … vs Mohammed Mohiuddin And Ors on 28 November, 2003"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Secunderabad Cantonment … vs Mohammed Mohiuddin And Ors on 28 November, 2003<\/div>\n
Author: B Kumar<\/div>\n
Bench: Brijesh Kumar, Arun Kumar.<\/div>\n
           CASE NO.:\nAppeal (civil)  6877-6881 of 2000\n\nPETITIONER:\nSecunderabad Cantonment Board,Andhra Circle,Secunderabad rep.by Execu.Officer \n\nRESPONDENT:\nMohammed Mohiuddin and Ors. \n\nDATE OF JUDGMENT: 28\/11\/2003\n\nBENCH:\nBrijesh Kumar & Arun Kumar.\n\nJUDGMENT:\n<\/pre>\n
JUDGMENT<\/p>\n
WITH<\/p>\n
CIVIL APPEAL N0. 753\/2001<\/p>\n
The State of Andhra Pradesh, rep.by\t\tAppellant
\nCollector, Hyderabad Dist.,Andhra Pradesh<\/p>\n
Versus<\/p>\n
Mohammed Mohiuddin & Ors.\t\t\tRespondents<\/p>\n
WITH<\/p>\n
CIVIL APPEAL NOS. 1107-1111\/2001<\/p>\n
Union of India\t\t\t\tAppellant<\/p>\n
Versus<\/p>\n
Mohammed Mohiuddin & Ors.\t\t\tRespondents<\/p>\n
WITH<\/p>\n
CIVIL APPEAL N0. 6604\/2001<\/p>\n
Secunderabad Cantonment Board,         \t\tAppellant
\nCourt Compound, Secunderabad rep.<\/p>\n
\nBy Executive Officer\n\nVersus\n\nWeavers represented by their\nChairman, T.K.Kodandaram\t\t \t\tRespondents\n\nWITH\n\nCIVIL APPEAL NOS.____of 2003 \n@ S.L.P. ) NOS. 406-409\/2002 \n\nM\/s.Weavers Educational Advance\nVocational Economic Rehabilitation\nSociety, represented by its Chairman\nT.K.Kodandaram\t\t\t\t\tAppellant\n\nVersus\nUnion of India & Ors.         \t\t\tRespondents\nAND\n\nCIVIL APPEAL N0. 6376\/2001\n\nSyed Sadiq Ali Khan\t\t\t\t\tAppellant\nVersus\nThe Executive Officer & Ors.        \t\tRespondents\n\n\nBRIJESH KUMAR,J. \n\n<\/pre>\n
\tAll the above noted appeals though filed by different
\nparties, involve the same question relating to the legality of the
\norder dated 11.8.2000 passed by the Division Bench of the
\nAndhra Pradesh High Court as well as the judgments later
\npassed following the above said decision. The controversy
\nrevolves around the refusal to sanction the plan submitted by
\ndifferent parties to the Cantonment Board for construction of
\nbuilding over  the land in question. The central government
\nraised its claim over the land and filed objections to that effect
\nthrough the Defence Estate Officer as provided under Section
\n181 of the  Cantonment Act, 1924 (hereinafter referred to as
\n‘the Act’).\n<\/p>\n
\tAll the appeals have been heard together along with
\nSpecial Leave Petition(C) Nos.406-409\/02 in which we grant
\nleave.  All these matters are being disposed of by this common
\njudgment.\n<\/p>\n
\t\tThe facts in brief,  relevant for purposes of  disposing of
\nthese matters are that: the land over which the respondents
\nproposed to raise construction and had submitted plans
\ntherefor, falls in the limits of Secunderabad Cantonment Board.
\nThere is a bungalow No. 215 in Thokatta Village,  which is
\nsaid to have been purchased in the name of Syed Sirajuddin Ali
\nKhan, the minor,  represented through  his father Syed Sadiq
\nAli Khan, by means of a registered sale deed dated 21.9.1899.
\nIt is also the case of respondents that Syed Sirujdin Ali Khan
\non attaining majority relinquished his rights in favour of his
\nfather Syed Sadiq Ali Khan by means of a deed dated
\n11.8.1911.  The case of the respondents further is that Sadiq
\nAli Khan had allotted land to 11 persons sometime in 1920 and
\nmade an application for making entries in the village records
\naccordingly.  The land  S No. 37 was changed to S No. 170 on
\nrevision of settlement. According to the  respondents,  the
\ncantonment authorities have been collecting tax in respect of
\nthe land which has been in their possession.    The respondents
\nmoved application to the Executive Officer, Cantonment Board
\nfor sanction of lay out  in respect of part of the land of S. No.
\n170,  measuring 8 acres.  The application for sanction of the
\nplan was returned to the respondents with an objection that
\nthey were  required to furnish exemption certificate under the
\nprovisions of Urban Land (Ceiling and Regulation) Act, 1976.
\nThe respondents challenged the return of the layout plan
\nand filed a writ petition 4250 of 1994,  before the Andhra
\nPradesh High Court. The  Writ petition was allowed on
\n30.9.94,  and it was  held that no such exemption certificate
\nunder the Urban Land (Ceiling and Regulation)  Act, 1976 was
\nrequired  to be furnished.  The authorities were  directed  to
\nconsider the sanction of the plan without insisting for
\nexemption certificate.  The lay out plan,  however, was again
\nreturned on the ground that  S No. 170 is in Sarkari Abadi
\nLand.  Another writ petition No.6012\/95 was filed,
\nchallenging the above order. The said writ petition was also
\nallowed by order dated 6.12.95 with a direction to the
\nauthorities to find out as to whether the respondents had
\nestablished a prima facie case as to their possession and also to
\nconsider the objection of the Union of India and to pass an
\nappropriate order thereof.   The application for sanction of plan
\nwas ultimately dismissed on 18.1.1996, refusing permission,
\nas the land was found  to have been in possession of
\nGovernment of India. An appeal was preferred against that
\norder.  Since the appeal kept on pending,  yet another writ
\npetition No. 3606\/96 was filed to restrain the authorities  from
\ninterfering with the  possession of the petitioners (in the writ
\npetition) over the land,  till disposal of their appeal.  This
\nprayer was granted on 27.2.1996.  By means of yet another
\norder passed in writ petition No. 6009\/96 police protection was
\nalso provided to the writ petitioners (respondents here).
\nUltimately,  the appeal was dismissed on 10.5.1996 holding
\nthat the respondents had no title to the land in question.
\nIt gave rise to filing of yet another writ petition No.
\n10804\/96 against the order dismissing the appeal.   The learned
\nSingle Judge while allowing the writ petition  held that the
\nauthorities  were not required to go into the question of  title of
\nthe applicants  in the land.  The writ petitioners,  namely,  the
\npresent respondents were held to be in possession over the
\nproperty.  The learned Single Judge also considered  the case of
\nthe appellants  that the land was covered under the old grant
\nand found  that no land was granted to the Government of India
\nby Nizam for military  purposes.  The learned Single Judge
\nfound that in the earlier proceedings,  the authorities did not
\nraise  objection claiming title,  therefore,  they could not take
\nthat  stand in subsequent proceedings as it would be  hit  by
\nprinciples of constructive res judicata. Possession of appellant
\nwas also not found.  With such observation,  the learned Single
\nJudge while allowing the writ petition,  directed the
\nCantonment Board to sanction the lay out plan.  The appeal,
\npreferred against the judgment of the learned Single Judge,  has
\nbeen dismissed,  which is the subject matter of   appeals in
\nhand.\n<\/p>\n
\tSome other developments also took place during all this
\nperiod.  According to the appellants,  till the year 1992 the
\nrespondents extended  no claim,  whatsoever, to the land in
\nquestion.  However, the respondent Sadiq Ali Khan   filed a
\npetition under Section 15(2) of the Record of the  Rights
\nRegulation Act for correction  of entries in the Revenue
\nRecords  to the extent of 25 acres, on the basis of an
\nunregistered sale deed.  The said application was rejected by
\norder dated 9.4.92 by the District Revenue officer,  holding
\nthat land measuring only 2.71 acres out of the land of
\nBungalow No.215 was in the private hands and the rest of the
\nland was Government land which has been correctly shown to
\nbe so in the revenue records.  An appeal was preferred against
\nthe said order before the Commissioner of Land Revenue
\nunder Section 158  of the Land Revenue Act which was
\ndismissed on 15.3.97.  It  may  also be  mentioned  that
\naccording to the appellants,  the  respondents Nos. 1 to 62 had
\nalso got themselves impleaded as parties in the appeal which
\nhas been decided against them.\n<\/p>\n
\tSadiq Ali Khan filed a Civil Suit No.288\/92 also in the
\nCourt of Civil Judge,  Secunderabad  claiming  ownership and
\npossession of  land measuring 65 acres in S.  No. 170 in
\nTokketa Village. A prayer made for interim injunction was
\nrejected by order dated 12.10.92.  It was, however, found that
\nthe plaintiff in suit was in  possession of land measuring 2.71
\nacres only and in respect thereof,. he was entitled for
\ninjunction against dispossession,  but so far the rest of the land
\nis concerned measuring near about 63 acres it was in the
\nownership and possession of the Government of India.
\nThe Division Bench took note of the finding of the
\nlearned Single Judge that the competent authority,  while
\nconsidering the question of sanction of the building plan,  is
\nonly required to see the prima facie possession of the
\napplicant, it has not to adjudicate  upon  the title of the
\napplicants.   The Division Bench also observed that the
\ngovernment authorities had not claimed  title over  the land in
\nthe previous proceedings,  therefore,  they  were estopped
\nfrom raising such a plea later which is hit by the principles of
\nconstructive res judicata.  Referring to a decision reported in
\nAIR 1977 SC 392  Y.B. Patil Vs. Y.L. Patil,  it observed that
\nthe principles  of constructive res judicata could apply   in
\nsubsequent stages of the same proceedings as well.
\nUltimately,  it was held that principle of constructive res
\njudicata  in this case would apply to a  limited extent as to the
\navailability of the  grounds  on which layout plan  could be
\nrefused.   The Division Bench, however itself   recorded
\nfinding that there is a serious dispute of title amongst  various
\npersons.  The relevant   part of the judgment may be quoted,
\nwhich reads as follows:-\n<\/p>\n
\t“With regard to question of title, it is well
\nsettled that highly  disputed question of title
\ncannot be entertained and adjudicated in a petition
\nunder Article 226 of the Constitution of India.
\nFrom the various contentions raised and
\narguments urged on behalf of the respective
\nparties, it is apparent that there is a serious dispute
\nof title among the various persons and authorities
\nin respect of title  to the property in question.”\n<\/p>\n
In so far the objections of the appellants that the learned
\nSingle Judge has virtually given a finding on the title in favour
\nof the petitioners,  the Division Bench observed as follows: –
\n\t“Such an impression does emerge from the
\nobservations of the learned Single Judge at page
\n22 of the judgment, like as authenticity of these
\ndocuments cannot be doubted by the respondents,
\nthe same have to be given their  weight, and when
\nreliance is placed on those documents, the title of
\nthe petitioners cannot be disputed.  We do not
\nagree with the conclusions of  the learned Single
\nJudge that the petitioners’    title has been
\nestablished.”\n<\/p>\n
The  Division Bench has reiterated its view that question of
\ntitle could not be decided before the competent authority nor
\nsuch disputed question could be decided in writ proceedings.
\nIt, however, in the later part of discussion in the judgment, has
\nclarified the extent to which it upholds the applicability of
\nprinciples of constructive res judicata,  not  being totally in
\nagreement with  the finding of the learned Single Judge on the
\nsaid point.  The relevant observation in that regard may be
\nperused,  which are quoted below:-\n<\/p>\n
“It is made clear that this judgment under
\nappeal  shall not be construed as having decided
\nthe question of title in respect of the land involved
\nin the said writ petition.  We also hold the view
\nthat even the failure of respondents  to raise or set
\nup  the question of the title  in earlier writ
\npetitions, namely, WP No. 6012 of 1995, 3600 of
\n1996 and 6012 of 1996  as mentioned at page 21
\nof the judgment of the learned Single Judge,
\ncannot be basis for invoking the principle of res
\njudicata in respect of the question of title.  The
\nprinciple of res judicata as stated above would in
\nthis case be applicable only to the limited question
\nas to the entitlement of the petitioner for sanction
\nof lay out and as to the grounds on which such
\nsanction can be refused.”\n<\/p>\n
In so far the finding of the learned Single Judge in
\nrelation to the possession of the land by  all the writ
\npetitioners, it has been held by the Division Bench that the
\nsaid  finding is limited only for the purpose of sanction of lay
\nout and not for any other purpose.\n<\/p>\n
Before proceeding  to discuss the submissions made
\nbefore us by the respective parties,  it may be beneficial to
\nperuse the provisions regarding the sanction of the lay out
\nplan.  Section 181 of the Cantonment Act reads as under:-
\n“Section 181. Power of Board to sanction or
\nrefuse  (1) The Board may either refuse to
\nsanction    the erection or re-erection, as the case
\nmay be, of the building,  or may sanction it either
\nabsolutely or subject to such directions  as it
\nthinks fit to make in writing in respect   of all or
\nany of the following matters namely:-\n<\/p>\n
(a)    to    (j)  x x x x x x    \n(2)\t x x x x x x\n<\/pre>\n
(3)\tThe Board before sanctioning the  erection
\nor re  erection of a building  on land which is
\nunder the management of the {Defence Estates
\nOfficer},  shall refer the application to the
\n(Defence Estates Officer) for ascertaining whether
\nthere is any objection on the part of the
\nGovernment to such erection or re-erection  and
\nthe (Defence Estates Officer) shall return the
\napplication together with his report thereon to the
\nBoard within thirty days after it has been received
\nby him.\n<\/p>\n
(4)\tThe Board may refuse to sanction the
\nerection or re-erection of any building<\/p>\n
(a)\twhen the land on which it is proposed
\nto erect or re-erect the building is held on a lease
\nfrom the Government, if the erection or re-erection
\nconstitutes a breach  of the terms of the lease, or<\/p>\n
(aa) when the land on which it is proposed to erect
\nor re-erect the building   is entrusted to the
\nmanagement of the Board by the Government if
\nthe erection or re-erection constitutes a breach of
\nthe terms of the entrustment of management or
\ncontravenes any of the instructions issued by the
\nGovernment regarding the management of the
\nland by the Board, or <\/p>\n
(b) when the land on which it is proposed to erect
\nor re-erect the building is not held on  a lease from
\nthe Government, if the right to build on such,  land
\nis in dispute between the person applying for
\nsanction and the Government.\n<\/p>\n
(5)\tx  x x x x x x
\n(6)\tx x x x x x x”\n<\/p>\n
Bye law 15 reads as under:-\n<\/p>\n
“15. Power of Cantt. Board to sanction, modify
\nor reject:- The Cantonment Board may sanction
\nthe lay out plan submitted by the applicant if the
\nsame is in accordance with the bye-laws or
\nsanction the same with such modifications as the
\nCantt. Board may consider fit, or may refuse to
\nsanction any layout  if proprietary rights on the
\nland proposed to be laid out is claimed by the
\nGovernment of India in the Ministry of Defence to
\nbe their land as shown in the General Land
\nRegister maintained  for the purpose”.\n<\/p>\n
\tIn our view,  the main question which falls for
\nconsideration is about the ambit and scope of Section 181 of
\nthe Act,  more particularly Clause (b) of sub-section 4 of
\nSection 181.  The above provision empowers the Board to
\nrefuse sanction of a building plan where the land on which a
\nconstruction is proposed to be raised is not on lease from the
\nGovernment and  there  exists any dispute between the
\napplicant for sanction of the plan and the Government.
\nThe respective  parties  have drawn our attention to
\ncertain facts and documents to show as to which of them is the
\nrightful owner of the land.  The other question which has been
\nraised by the respondents is that ground for rejection of plan
\nas contained in Clause (b) of Sub-section 4   of Section 181 is
\nnot open to be resorted to by the appellants since such a
\nground was not raised earlier while  returning the plan, since
\nin  such a situation principle of constructive res judicata
\nwould be attracted.  There are a few other peripheral questions
\nwhich we shall be discussing later.\n<\/p>\n
The application for sanction of plan was moved by the
\nrespondents on 4.12.93 addressed  to the Cantonment
\nExecutive Officer.  On 4\/5 January, 1994 the Cantonment
\nExecutive Officer wrote that the ULSC exemption certificate
\nin Form 19(V) from DEAPU Circle Secunderabad was not
\nfurnished.  It was also indicated that Board was also
\nexamining the matter    relating to entertaining  new lay out
\nplans.  Hence the plan submitted by Nawab Mohd. Usuf Khan,
\nthe General Power of Attorney, was returned.   We have
\nalready noted that  a writ petition preferred namely, writ
\npetition No. 4250 of 1994, against the return of the plan was
\nallowed by the High Court by Judgment dated 30.9.94,
\nholding that no exemption  certificate under the provisions of
\nthe Urban (Land and Ceiling) Act  was necessary.  Hence  the
\nmatter was required to be considered again without insisting
\nupon a  Urban Ceiling exemption certificate.  The respondents
\nthen again seems to  have approached for consideration of
\nsanction of the plan on 10.1.1995. The cantonment Executive
\nOfficer by means of his notification dated 15\/3\/99 informed to
\nthe General Power of Attorney Sh. Nawab Mohd Usuf Khan
\nthat the DEO (Defence Estates Officer)  had raised definite
\nobjection on behalf of  the Government against the lay out
\nplan submitted by the respondents.  It was also indicated that
\nin the Revenue Records Sy. No. 170 of Thokatta Village is
\nshown as Sarkari Abadi which is defence owned land.   The
\nplan was thus  again returned  to  the respondents.  At this
\njuncture,  it may be relevant to take note of sub-section 3 of
\nSection 181 of the Act, as quoted  earlier.\n<\/p>\n
We have already noted the findings recorded in the writ
\npetition and the appeal in the earlier part of the judgment.  The
\nlearned counsel for the appellant has laid great emphasis  upon
\nthe  old revenue record entries in favour of the appellant and
\nthe entries made in the General Land Register.  It is submitted
\nthat Cantonment Land Administration Rules, 1937 have been
\nframed by virtue of power vested under Section 280 of the
\nCantonments Act, 1924. Rule 10 in Chapter III of the
\nCantonment Land Administration Rules  deals with
\nmaintenance of   General Land Register. The  Military Estates
\nOfficer (now Defence Estates Officer) is required   to maintain
\nGeneral Land Register prepared under Rule 3 in respect of all
\nland which has been entrusted to or vests in the Board.  In this
\nconnection,  a reference has also been made to a decision
\nreported in 1999 (3) SCC page 555,  Chief Executive Officer
\nVs. Surendra Kumar Vakil and Ors.  Regarding  General Land
\nRegisters,  it has been observed that they are maintained under
\nthe Rules, in normal  course of business and  entries made in
\nsuch registers  were to be given due weight.  It is therefore,
\nsubmitted that it cannot be said that no value is to be attached
\nto the entries made in the General Land Registers.  It has also
\nbeen submitted  that there being   a serious dispute about the
\ntitle of the property  as also found  by the Division Bench,
\nexistence of the dispute  in respect of the property in question
\ncannot be disputed.\n<\/p>\n
The learned  counsel appearing for the Union of India
\nhas referred to the proceedings which were initiated by Sadiq
\nAli Khan for correction of revenue records but that application
\nwas rejected on 9.4.92.  The appeal, preferred against the said
\norder passed by the District Revenue Officer in which 62
\nrespondents also got themselves impleaded, was also
\ndismissed  That is to say the entries in revenue records in
\nfavour of the Government  were maintained  and the attempt
\nof the     respondents for change of the entries claiming right
\nover the land in question failed.  The authorities of the
\nDefence Department were also heard.  It  was held that the
\nclaim advanced by the  respondents was not  substantiated by
\ndocuments and it was  without any basis.  It was found that the
\nland was Government land\/military estate.  The Special
\nCommissioner,  Land Revenue observed in his order that no
\nproper documents were produced  by the respondents.  It is
\nalso indicated that in a suit filed by Sadiq Ali Khan (O.S. No.
\n288\/92) with a prayer for injunction on the basis of the
\npossession, the prayer was rejected except in part relating to
\n2.7 acres.\n<\/p>\n
 Learned counsel appearing for the respondents tracing
\nthe history submitted that area of the village concerned
\nbelongs to the Nizam.  It is also submitted that respondents
\nhave been paying tax in respect of the  Bungalow No.215
\nwhich was purchased by Syed Sirajuddin Ali, a minor son of
\nSadiq Ali Khan in the year 1899  who,  on attaining majority,
\nhad relinquished his rights in favour of his father,  Sadiq Ali
\nKhan on 11\/8\/1911. He wrote to the authorities in 1920 that he
\nhad allotted the land to the extent of 19.05 gts.  to different
\npersons and the same was requested to be recorded in the
\nvillage records.  The fact was acknowledged by the
\nDirectorate  and the Secretary of the Estate of Nawab
\nSalarjung Bahadur  saying that it was not agricultural land,
\ntherefore no assessment was made  but later tax at the rate of
\nRs. 5  per acre  was levied.  Therefore, a sum of Rs. 325\/- in
\nrespect of the land   in Survey No. 37 was held liable to be
\ncollected from Sadiq Ali Khan  and his allottees.    It was also
\nindicated  by the authorities of the Estate that on revision of
\nthe Bandobast (settlement)   Sy. No. 37 was given a new  Sy.
\nNo. 170.  He has also drawn our attention to the fact that the
\nland which  was handed over by the Nizam to Government
\nwas only for the purposes of exercising criminal and police
\njurisdiction by the Government of India and Thokatta  is one
\nof such villages mentioned in the notification dated 28\/9\/1906.
\nA copy of the aforesaid document  has been provided to us by
\nthe learned Counsel for the respondents which does not seem
\nto be a part of the record.  He has also drawn our attention to
\nthe documents, namely, the sale deed dated 21\/9\/1899
\nregarding 64 acres  and  deeds pertaining to non-agricultural
\nland. It has further been submitted that the dispute regarding
\nthe land, by reason of which permission to sanction the map
\ncan be refused,  should be bonafide and a genuine dispute.
\nSo far the question of investigating into the title of the
\nparties is concerned,  we feel that the view  of the High Court
\nto the extent that title is not required to be  established by any
\nof the parties before the competent authority,  is correct.  So
\nfar  possession is concerned,  it may be indicated that there
\nseems to be no such specific provision requiring to establish
\npossession but it  may depend upon facts of a given case and it
\nmay be  considered as one of the relevant aspects to be kept in
\nmind while considering the application   for sanction of a
\nplan.   But so far the statutory requirement is concerned, it is
\nevident from perusal of sub-section 4 (b) of Section 181 that
\nthe competent authority dealing  with the matter,  has to see
\nwhether  there is or not any  dispute about the land between
\nthe person applying  for sanction of the plan and the
\nGovernment.  In case the concerned authority  is satisfied
\nabout the existence of such a dispute in terms of  Section 181
\nof the Act,  the request for sanction of the lay out plan is liable
\nto be refused.  In this connection,  it will  also  be relevant to
\nrefer to sub-section 3 of Section 181 which provides that
\nbefore sanctioning a plan the Board is required to refer the
\napplication to the Defence Estates Officer for ascertaining
\nwhether there was any objection on the part of the
\nGovernment to such erection or re-erection over the land.  The
\nsaid provision casts a duty upon the sanctioning authority to
\nrefer the matter as pointed out  above. Accordingly, it referred
\nthe matter to the DEO,  who raised objections regarding
\nsanction of the plan.  The objection relates to the question of
\nownership of the land.  The government claims ownership of
\nthe land  and in  that regard  reliance  was placed upon entries
\nin the Revenue Records and the General Land Register which
\nare maintained in due course of official business.  The
\nrespondents claimed their title through the sale deed executed
\nin favour of son of Sadiq Ali Khan in the year 1899,   who on
\nattaining majority had relinquished his rights in favour of his
\nfather Sadiq Ali Khan on 11\/8\/1911 and then the alleged
\ntransfer of  different parts of the land to eleven different
\npersons. It has been pointed out earlier also that the
\nrespondents had moved  for correction of the records before
\nthe Revenue Officer but they failed.  The appeal also remained
\nunsuccessful, in which all the 62 respondents had got
\nimpleaded themselves.     A civil suit for injunction was  filed
\nby Sadiq Ali Khan in 1992 but the prayer for injunction was
\nrefused except in respect of a part of the land measuring 2.71
\nacres since  prima facie,   their possession was not found over
\nthe rest of the land.  It may be worthwhile to notice that the
\nproceedings for correction of the records and  the Civil Suit
\nfor injunction were initiated in 1992 and the application for
\nsanction  of the plan was moved  in 1994,  that is to say,  after
\nthe respondents remained unsuccessful  in their attempts to
\nobtain orders  in their favour twice before.  In such
\ncircumstances,  it would be difficult to say that there would be
\nno  bonafide dispute about the land between the parties.  In
\nthis background, we do not   feel it necessary to enter into the
\ncontents and merits of various documents relating to title
\nrelied upon by either side. That enquiry would be necessary
\nonly if question of title could be decided in these proceedings
\nand not otherwise. But  we find there enough material,  on the
\nbasis of which an  authority could reasonably come to the
\nconclusion that there was a dispute, relating to the  land,
\nbetween the applicant and the Government in respect of which
\nsanction of the plan to construct, was applied for.  Such a
\ndispute was brought to the notice of the competent authority
\nby means of objection placed before it by the Defence Estates
\nOfficer  under the statutory provision.   We don’t think that it
\nwould be possible to say that the authority concerned took a
\nview about existence of dispute which was not sustainable.
\n  We may then consider the question as raised regarding
\napplication of principles of constructive res judicata. The
\nDivision Bench has  recorded a finding that  the appellants
\nwere estopped,    on the principle of constructive res judicata,
\nfrom raising an objection relating to existence of dispute over
\nthe land,  on the basis  that no such plea was put forward  at
\nthe stage when the map was returned  first in the year 1994
\nsaying  that the exemption certificate under Urban Land and
\nCeiling Act was  not filed by the applicants.  Therefore, this
\nplea of dispute over the land between applicants and the
\nGovernment, which could have been raised earlier, but not
\nraised,  cannot be allowed to be taken up now.    Learned
\ncounsel for the respondent has in this connection placed
\nreliance upon a decision reported in 1970 SCR page 830,
\nMathura Prasad  Bajoo Jaiswal and Ors. Vs. Dossibai N.B.
\nJeejeebhoy.  Our attention has been particularly drawn to page
\n836  which  is quoted below:-\n<\/p>\n
\t“It is true that in determining the application
\nof the rule of res judicata the Court is not
\nconcerned with the correctness or otherwise of the
\nearlier judgment.  The matter in issue, if it is one
\npurely of fact, decided in the earlier  proceeding
\nby a competent court must in a subsequent
\nlitigation between the same parties be regarded as
\nfinally decided and cannot be reopened.  A mixed
\nquestion of law and fact determined in the earlier
\nproceeding between the same parties may not, for
\nthe same reason, be questioned in a subsequent
\nproceeding between the same parties.  But, where
\nthe decision is on a question law, i.e. the
\ninterpretation of a statute, it will be res judicata in
\na subsequent proceeding between the same parties
\nwhere the cause of action is the same, for the
\nexpression “the matter in issue” in s. 11 Code of
\nCivil Procedure means the right litigated between
\nthe parties, i.e. the facts on which the right is
\nclaimed or denied and the law applicable to the
\ndetermination of that issue.  Where, however, the
\nquestion is one purely  of law and it relates to the
\njurisdiction of the Court or a decision of the Court
\nsanctioning something which is illegal, by resort
\nto  the  rule  of  res judicata a party affected by the<\/p>\n
decision will not be precluded from challenging
\nthe validity of that order  under the rule of res
\njudicata, for a rule of procedure cannot supersede
\nthe law of the land.”\n<\/p>\n
On the basis of above observation,  it is submitted that
\ndecision between the parties,  on the question of law, will bind
\nthe parties in subsequent proceedings.  So far  proposition of
\nlaw is concerned,  there  would  be no dispute  to the same but
\nwe don’t find that there has been any decision between the
\nparties on the question of dispute in terms of sub-section 3 of
\nSection 181 of the  Act.   No question for interpretation of any
\nprovision of law is involved.   We, therefore,  find that the
\nabove decision would be of no help to the respondents.  A
\nreference has also been made to 1977 (3) SCR 428 State of
\nUttar Pradesh Vs. Nawab Hussain particularly to the
\nobservation made at pages 431 and 434.  On the  basis of the
\nabove decision, it is submitted that doctrine of  res judicata
\nwould be applicable even to the proceedings other than suits,
\nas has been  held in the above case that principle of
\nconstructive res judicta would be applicable  in proceedings
\nunder  Article 226 of the Constitution of India.  It is also
\nsubmitted that a plea which could be raised in the earlier
\nproceedings, if not raised by a party, it would not be
\npermissible to raise the same  subsequently   between the same
\nparties.\n<\/p>\n
In connection with the above arguments,  it would be
\nworthwhile to notice  that stage for raising an objection
\nregarding a dispute between the Government and the applicant
\narises after the application is referred  to the DEO by the
\nsanctioning authority  in terms of sub-section 3 of Section 181.
\nSo far the return of the first application is concerned,  it may
\nbe noted that it was  returned  since  the sanctioning authority
\nthought it  not to be entertainable,  having not been
\naccompanied by an exemption certificate under the provisions
\nof the Urban Land Ceiling Act.  Apparently,  it appears that
\nthe stage had not yet arrived for referring the application to the
\nDEO for his objections.  The competent authority is required
\nto refer the application before sanctioning  the plan.  Nothing
\nto the contrary has been indicated by the respondents to show
\nthat despite  reference of the application to the DEO under
\nSub-section 3 of Section 181,  the DEO had chosen not to file
\nany objection in respect  of the dispute or the claim over the
\nland. On the basis of the above factual aspect, in our view,  the
\nquestion of  failing   to raise a plea in the earlier proceedings
\ndoes not arise due to  return of the first application.   There is
\nno reason to infer that the DEO had foregone his right to raise
\nobjection regarding the ownership of the land before sanction
\nof the lay out plan. The argument therefore, raised is not
\napplicable in the set of facts     of this case.  Learned counsel
\nfor the appellants has,  however, placed reliance upon a
\ndecision reported in 1996 (6) SCC  424  Allahabad
\nDevelopment Authority   Vs. Nasiruzzaman and Ors.
\nparticularly to paragraph 6,  which reads as under:-
\n\t“In view of the above ratio, it is seen that
\nwhen the legislature has directed to act in a
\nparticular manner and the failure to act results in a
\nconsequence, the question  is whether the previous
\norder operates as res judicata or estoppel as
\nagainst the persons in dispute.  When the previous
\ndecision was found to be erroneous on its fact, this
\nCourt held in the above judgment that it does not
\noperate as res judicata.  We respectfully follow
\nthe ratio therein.  The principle of estoppel or res
\njudicata does not apply where to give effect to
\nthem would be to counter some statutory direction
\nor prohibition.  A statutory direction or prohibition
\ncannot be ovderridden or defeated by a previous
\njudgment between the parties”.\n<\/p>\n
Yet another case referred to by the learned counsel for the
\nappellant is reported in 1997 (9) SCC 191  Bansilal Farms Vs.
\nUmarani Bose and Ors. On the basis of  the above   decision,
\nit was submitted that the State’s right would not be affected
\nby any order or compromise by applying  the principle of
\nconstructive res judicata.\n<\/p>\n
We,  however, find that facts of the case in which the
\nabove  observations have been  made by the Court were
\nslightly different.  Shri Altaf Ahmad, learned Addl. Solicitor
\nGeneral, has then referred to “Administrative Law” by Sir
\nWilliam Wade,  eighth edition,  page 249,  relevant part of
\nwhich reads as under:-\n<\/p>\n
“Like other forms of estoppel already
\ndiscussed, res judicata plays a restricted role in
\nadministrative law, since it must yield to two
\nfundamental principles of public law: that
\njurisdiction cannot be exceeded: and that
\nstatutory powers and duties cannot be fettered.
\nWithin those limits, however, it can extend to a
\nwide variety of statutory tribunals and authorities
\nwhich have power to give binding decisions, such
\nas employment tribunals and commons
\ncommissioners. .”.\n<\/p>\n
   It is,  therefore,  submitted that  generally,  role of the
\nprinciple of res judicata in administrative matters is restricted,
\nand  statutory powers and duties administratively performed
\ncannot be thwarted by application of principles of res judicata.
\nIt may be remembered that the earlier order returning the lay
\nout plan was on the ground of non-fulfillment of requirement
\nof filing exemption certificate which  the High Court in the
\nwrit petition held  that there was no such requirement to
\nsubmit exemption certificate under the Urban Land Ceiling
\nAct.  There was a direction to re-consider the matter,  hence it
\nwas being scrutinized  on the grounds other than requirements
\nof filing of an exemption certificate.  As indicated earlier,
\nthere is nothing to show that a reference was made to the DEO
\nbefore returning the application earlier. As a matter of fact, no
\nsuch occasion would have arisen  then.  In this background,
\nthe DEO would neither be  denuded  of his statutory
\nresponsibility   to raise objection about  Government’s   claim
\nto the land or dispute about it   nor the competent authority
\nwas absolved of his statutory duty to refer the matter to the
\nDEO before considering the question of passing of the order
\nof  sanction of the plan. The return of lay out plan earlier, was
\nin a way at the preliminary stage when it was found that the
\napplication did not accompany the necessary documents eg.
\nexemption certificate under ceiling laws, which was then
\nconsidered to be necessary.  Stage to file objection came later
\nwhen the application may have been referred to the D.E.O.
\nThe observations referred to earlier made in  the
\nAdministrative Law by Wade are  certainly attracted to the
\nfacts of the case.  In our view, the respondents just wanted to
\nhold  on by raising a flimsy and feeble plea of constructive res
\njudicata which is not sustainable either on fact or in law.  In
\nthe facts and circumstances indicated   above,  we,  therefore,
\nhave no hesitation in holding that the learned Single Judge as
\nwell as the Division Bench fell  into error in holding that the
\nobjection under Sub-section 3 of Section 181 of the Act could
\nnot be raised by the DEO by applying the doctrine of
\nconstructive res judicata.\n<\/p>\n
We have already found that in the facts and
\ncircumstances discussed above,  it cannot be said that a
\nreasonable person would not come to  a conclusion that there
\nis  a dispute in regard to the land in question so much so the
\nrespondents themselves had to move the authorities and the
\nCourt twice  in connection thereof. Before the revenue
\nauthorities  they failed and in the civil court some partial relief
\nof injunction restricting to an area of 2.71 acres was granted.
\nTherefore,  it cannot be said that the land was free from
\ndispute.  As a  matter of fact, we have already indicated that
\nthe Division Bench of the High Court itself has arrived at
\nsuch a conclusion but found erroneously that it would not be
\nentertainable being barred  by principles of constructive res
\njudicata.\n<\/p>\n
\tThere  also seems to be some inter se dispute with one
\nof the parties appearing in person who alleged  that   the writ
\npetition was filed by third  parties  claiming themselves as
\nallottees  to the extent of  19.30 gt. In fact, it is submitted that
\nland was given to his fore-fathers and the case of the
\npetitioner-respondents is false and bogus.  He further alleges
\nforgery on the part of the holder of the Power of Attorney.
\nInitially there were only  11 transferees which number swelled
\nto 62.  He made various allegations of forgery  etc.  committed
\nin the matter.  We however,  find that  such    disputes are
\nbeyond the scope of the present  controversy which is
\nconfined to the question as to whether the lay out plan could
\nhave been sanctioned or not.\n<\/p>\n
An effort has also been made on behalf  of the
\npetitioner-respondents about the array  of the parties in the
\nproceedings.  In this connection Section 79 and Order 27 Rule
\n3 of the Code of Civil Procedure have    also been referred  to
\ncontend that  in a suit by or against the Government, Union of
\nIndia is to be impleaded as a party and not the authority or any
\nofficer.   The  learned counsel for the Union of India  submits
\nthat the appeal has been filed on behalf of the Union of India
\nand the Defence Estates Officer is appellant No. 2.   It is
\nsubmitted that proceedings in court were initiated by the
\nrespondents by filing writ petitions.  Proper parties should
\nhave been impleaded by them. In the writ petition, the
\nrespondents did not implead Union of India as a party, hence,
\nit does not lie to them to raise any such objection. Again such
\nan  objection, in any case,  should have been raised in the writ
\nappellate court.  We,  however,  also find that in the array of
\nparties in the appeal proceedings before the High Court,
\nUnion of India is the appellant with Cantonment Board.  So is
\nthe position here also, in as much as the  Union of India is also
\nimpleaded  as one of the respondents in the present
\nproceedings.  It is indicated that DEO has throughout been
\nrepresenting the Government of India.  It is submitted that no
\nsuch issue was raised earlier and the matter has been contested
\nthrough out by the DEO and  the Cantonment Board, it cannot
\nbe said that  Union of India is not on the record as a party; it is
\nalso  represented   through counsel and submissions have been
\nadvanced on  behalf of Union of India as well  by Shri Anoop
\nChoudhary, senior advocate and Shri Altaf Ahmad, Addl.
\nSolicitor General of India has argued the case on behalf of the
\nappellant. The Union of India supports the applicants in
\nchallenging the order of the High Court.  Union of India has
\nalso filed appeals, Civil Appeal Nos.1107-1111 of 2001
\nimpugning the judgment of the Division Bench. We are not
\nfavourably inclined to entertain this technical plea for the
\nabove reasons.\n<\/p>\n
\tWe also find no substance in the submission made on
\nbehalf of the respondents that the lis is between the
\nCantonment Board and the respondents and there is no lis
\nbetween the Union of India and the respondents.  The
\nCantonment Board through one of its designated officer,
\nconsiders and passes appropriate order on the application for
\nsanction of plan.  At least it shall have right to defend its
\norders.  Under the statutory provision, the plan is not to be
\nsanctioned in case there is a dispute between the applicant and
\nthe government. Under the statute again the matter is to be
\nreferred to the Defence Estates Officer to ascertain this fact
\nand it is for him to raise objection, if any such dispute exists
\nbetween the applicant and the Government of India.
\nTherefore, it cannot be said that there would be no reason for
\nthese authorities to contest the matter. The interest of
\nGovernment of India is very much involved and it will have
\nall the interest to see that the plan is not sanctioned in case it
\nhas a claim over the land.\n<\/p>\n
\tWhile parting with the matter, we would like to clarify
\nthat the dispute and the orders thereon, in these proceedings,
\nare confined only to the question of sanction of the plan for
\nconstruction of building.  We have, therefore, refrained from
\ntaking note of vein efforts made by learned counsel for the
\nrespondents to assure the Court about their title, which, as
\nobserved earlier, could not be subject matter of such
\nproceeding.  Any dispute regarding the title between the
\nappellants and the respondents or the respondents inter se or
\nwith any other party may be a subject matter of any
\nappropriate separate proceeding, which any of the parties may
\ninitiate if advised in that regard, as that right would not be
\naffected by this order.\n<\/p>\n
\tFor the discussion held above, we find that the judgment
\nand order passed by the High Court is not sustainable.\n<\/p>\n
C.A.Nos.__________ of 2003 @ SLP(C) Nos.406-09\/2002
\n\tAfter having heard the appellants and perusing the
\njudgment impugned in these appeals, we find no infirmity so
\nas to call for any interference with the order passed. The High
\nCourt rightly held if the petitioner society wants to set up title,
\nit may institute a separate suit for such a relief.  The High
\nCourt rightly found that there was no occasion to reject the
\nplaint or to claim any declaration to the effect that the
\nCantonment Board is not the owner of the suit properties.  The
\nappeals have no merit.\n<\/p>\n
In the result, the appeals filed by the Secunderabad
\nCantonment Board (i.e. Civil Appeals No.6877-6881\/2000 and
\nC.A.No.6604\/2001) and the Union of India (i.e. Civil Appeals
\nNo.1107-1111\/2001) are allowed and the impugned
\njudgments\/orders passed by the High Court of  Andhra
\nPradesh are set aside.\n<\/p>\n
C.A.No.753\/2001 and C.A.No.6376\/2001<\/p>\n
\tSince the appeals filed by the Secunderabad Cantonment
\nBoard and the Union of India have been allowed setting aside
\nthe impugned judgments\/orders of the High Court of Andhra
\nPradesh,, no further order is required to be passed in these
\nappeals and they stand finally disposed of in view of the
\naforesaid judgment.\n<\/p>\n
C.A.Nos.______\/2003 @ SLP (C) Nos.406-09\/02
\nIn view of the position aforesaid and discussion held
\nearlier, we find no merit in the appeals and the same are
\ndismissed.\n<\/p>\n
Costs easy.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Secunderabad Cantonment … vs Mohammed Mohiuddin And Ors on 28 November, 2003 Author: B Kumar Bench: Brijesh Kumar, Arun Kumar. CASE NO.: Appeal (civil) 6877-6881 of 2000 PETITIONER: Secunderabad Cantonment Board,Andhra Circle,Secunderabad rep.by Execu.Officer RESPONDENT: Mohammed Mohiuddin and Ors. DATE OF JUDGMENT: 28\/11\/2003 BENCH: Brijesh Kumar & Arun Kumar. JUDGMENT: JUDGMENT […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-94104","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nSecunderabad Cantonment ... vs Mohammed Mohiuddin And Ors on 28 November, 2003 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/secunderabad-cantonment-vs-mohammed-mohiuddin-and-ors-on-28-november-2003\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Secunderabad Cantonment ... vs Mohammed Mohiuddin And Ors on 28 November, 2003 - 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